Sex Change: No Such Thing

Originally appeared in Transgender Tapestry #99, Fall 2002.

Nancy Nangeroni wrote the following in response to Juli Goins? letter in the Vitale
online newsletter.

As J?Noel Gardiner now knows
all too well, it?s all a lie. The
surgery that was supposed to bring
happiness, that was supposed to
make her a real woman, the surgery
that was supposed to change her sex,
didn?t. The Supreme Court in
Kansas, following the lead of the
Supreme Court in Texas, has now
ruled on that question, and they
both agree. The sex that was
assigned to you at birth is your sex,
period. No ifs, ands, buts, or
If you are a transsexual woman,
you may not marry a non-transsexual
man. If you are a transsexual man, you
may not marry a non-transsexual
woman. Of course, if you?re a transsexual
woman, it?s OK to marry a
woman, and likewise with men.

Contrary to the expectations of some
people, such homogenderal unions have
yet to discomfort anyone enough to
inspire a legal challenge to their validity.
Rather, this new ruling is just the latest in
a series of defeats on this issue,
dating all the way back to 1971 in Corbett vs. Corbett, the
British case that also went badly for the transsexual involved.

The Gardiner ruling has some very serious ramifications
for the transgender community. It?s only a matter of time before
some enterprising attorney or business owner or manager
makes the argument that, since a transsexual woman is still
legally a man according to the supreme court, then he (the
transsexual woman, who is, after all, a ?man?) must use the
men?s room. After all, the ?proper? assignment of transsexuals
to bathrooms has barely begun to be dealt with by our courts.
This new ruling could prove to be a serious impediment to
access by transsexuals to their bathrooms of choice.

But there?s an even more fundamental issue at stake here.
If there is no sex change, then there are no transsexuals. At
least, there are no transsexuals who are not living a lie, or at
least an elaborate self-deception. In the view promulgated by
this ruling, we are all just a bunch of addle-brained losers who
haven?t enough common sense to know that ?we are what we
are? and can?t change the simple fact of our sex any more than
we can change our height or our race. Sorry, transsexuals,
you?re just a bunch of self-deluded idiots. That?s what the
Kansas Supreme Court told us on
Friday, March 16, 2002. You can?t
change your sex. Unless, of
course, the legislature passes a
law that says you can.

Interestingly, the Gardiner
ruling reflects the kind of
thinking that was prevalent about
30-40 years ago, when
doctors claimed to be
making ?good citizens? out of
transsexuals by performing
the surgery, turning those
who might otherwise be
labeled as ?deviant? homosexuals
into apparent
heterosexuals. While this
most recent judgment is
opposite in effect, the
predominant consideration is the
same: homophobia. Back then, transsexuals
were sacrificed on the altar of
defense against homosexual visibility.
Doctors performed the social service of
hiding homosexuals by making them into
women. Today, transsexuals are pawns in
the struggle to defend the exclusive heterosexuality
of marriage. The cause is once again
defense of ignorant bigotry, and the victim
(among others) is again the transsexual or visibly
transgendered person.

Fortunately, it seems clear there is a rising tide of public
opinion in support of legitimating gay presence in our culture.
That tide seems likely to sooner or later overwhelm the
shrinking islands of defenders of the status quo, and marriage
(or civil union) based on desire and commitment rather than the
shape of one?s body parts should eventually become an
accepted part of our society. When that happens, then the issue
of whether or not a person has had genital rearrangement or any
other surgery will become moot, at least with respect to

However, it now seems clear that day will not be advanced
by a transsexual test case. Rather, it will happen when society
as a whole legitimates unions based on spiritual merit without
regard for physical shapes. Those trans persons who would like
to see the courts legitimate a change of sex would do well to
support efforts to legitimate gay marriage. As a locus of
homophobic resistance, failure to create change there impedes
all movement towards greater respect for individual difference,
especially with regard to gender.

In fact, I write this as one who has contributed little to that
particular struggle. I have long regarded the institution of
marriage as suspect, something better left to others. But maybe
it?s time for a rethinking of my priorities. Maybe a more
inclusive, gay-friendly concept of marriage or civil union
would have a significant effect on the institution. Maybe,
just maybe, gay-friendly marriage might be a more tenable
way for two people not just to bind themselves to one another,
but to celebrate their commitment to each other and enjoy the
support of society at large for their union while still retaining
their love and respect for, and most importantly their interest
in, one another.

Even if gay marriage becomes legitimated, it doesn?t
magically rescue transsexuals from legal limbo. But by making
the issue moot for the purposes of marriage between two
people, it removes a huge obstacle from the path towards
legitimating sex change. Instead of being pawns in the struggle
to protect a heterosexist institution, we could then be seen in
our own light, rather than obscured under that huge shadow.

Thanks to the myopic Gardiner ruling, though, we may be
facing an uphill battle for
recognition of sex change across
the board. At the very least, we
will need to buttress the gains
we?ve made towards respect for
transgenderism and transsexualism,
and rethink the
strategies we will deploy in
moving forward. It?s time to rally
the troops.

I propose that we start with the surgeons who have been
making out like bandits by doing cash up front surgery on
clients too desperate to complain. Consider Dr. Stanley Biber,
who has for many years been bringing in over $30 million a
year (by the conservative estimate of 300 surgeries/year at
$10,000 each) performing what he calls ?sex change
surgeries.? Biber is considered by many to be a good friend of
the transsexual community, and indeed he has advanced the
legitimacy of SRS (not to mention continuing the practice
when most others had abandoned it). But it?s time for Biber
and all the other SRS scalpel jockeys, Schrang, Meltzer,
Menard, Ousterhout, and so many more to let their
representatives in the judicial and legislative systems know
that this ruling puts in jeopardy their business (not to mention
the financial health of the town of Trinidad, Colorado, Biber?s
place of business). If there?s no possibility of legally changing
sex, then their services become a lot less attractive and their
business will suffer. So it?s time for these guys to let their
elected representatives know that this kind of court ruling is
bad for the economic health of their constituents.

They might also make the argument that sex change is
healthy for transsexuals. Longstanding legal practice, though,
shows that the health of transsexuals is at best a peripheral
consideration when legal rulings involving us are being made,
so this argument, while soothing of our egos, will probably
have little effect.

This would also be a good time for Rikki Swinn to put
some of her dollars to work. When my co-host Gordene
MacKenzie and I interviewed her on GenderTalk radio, Rikki
asserted that her foundation would primarily target, in its work,
the medical profession, because they?re the ones legislators
would turn to for advice in crafting any trans-relevant
legislation. At the time I disagreed strongly, but now I?m not so
sure. Is our system of laws so lacking a true moral compass
that it would require the certification of a medical doctor to
allow something so clearly and obviously healthy to
individuals and so harmless to everybody else? Remember,
we?re just talking about whether or not to legally recognize sex
change, no more. If this requires a doctor?s certification, then
we must, like the inmates in the asylum, belly up to the doctors
who control our future freedom, or risk lifelong imprisonment.
While some of the qualities of what passes for ?society? and
?living? (can you say ?herd? and ?consuming??) might lend
one to think that we?re all in a bizarre kind of global prison, we
might as well fight for positive change as much as possible.

But I digress.

It?s time for a resurgence of transgender education and
activism, with renewed support from the helping professionals.
We must get the word out and reverse the tide of public
opinion that makes rulings such as
this one feasible. All transpeople
who are using the services of
medical professionals should let
them know that their help is
urgently needed. Just ask the next
doctor you visit to write a letter to
their state representative
expressing concern over the
treatment of transsexuals by their
state law. If every legislator got one such letter, it would
prepare them to be sympathetic, or at least a little more aware,
the next time such an issue came up.

For all transgendered, trans, and transsexual persons, our
work is clear: we need to continue to work at the grassroots
level to educate more people about the reality of transgenderism
and sex change. We got where we are today by
getting out of our little closets and putting our reputations and
pride at risk by admitting the truth, our truth. What good is
pride if one is living in hiding? What good is privilege if it
makes one hide in shame, eating away at one?s self-esteem?
What good is a reputation if, at the core, one hates oneself?
We must strive to live with real integrity, not just the
watered-down, ?good enough for government work? version
that tolerates the hiding of personal truths in support of social
systems that compromise us for no good reason. In order to be
real, whole, healthy persons, claim the fullness of who we are,
and walk in the world with our heads up, unashamed, we must
own up to our truths and deal with the consequences. The
alternative is denying large parts of ourselves, living lives that
look nice, but feel miserable.

Our transgender desire and realization is neither
unnatural nor unhealthy. Most people, when they get to know
us a little, come to understand this and accept us as we are,
with the fullness of our complex gender. For many people, the
very existence of our gender complexity widens their own
gendered playing field and acts as a source of some relief for
them. Why do you think we attract such great television
ratings? At least in part it?s because we represent a kind of
Our systems change when we
develop the will to change
them and the courage to act
on that will. We have the will.

Courage is simply a matter of
admitting that there is no
other choice.
freedom that some people are literally dying for. While most
people don?t want to change their sex, most would love to be
freed from some of the gender traps that bring displeasure to
their daily lives.

We, the transgender community, are not sufficiently
powerful to overcome the opposition of entrenched prejudice
by ourselves. We need help, a lot of it. We need many, many
friends. The gay community now enjoys acceptance by a
majority of the population of this country. We can get there,
too? but we won?t get there just by passing laws or winning
court cases, though these things help. If we make the mistake of
obtaining rulings and passing laws without making friends first,
we?ll be sorry, as the rulings will get reversed and the laws
repealed or declared invalid.

We got where we are today, which is a whole lot better than
where we were 10 years ago, by making friends. The friends we
made added their voices to ours, so that when we asked for a
little respect, we began to get it. Now we need more than a
little respect. We need to sway popular opinion in our favor. For
that, we need a lot of new friends.

Of course, everyone else out there is not just waiting for an
opportunity to lend us a hand. Everybody has their own
individual concerns, and we make friends by taking an interest
in each other?s concerns. One of the great
sadnesses about being closeted is that you become more
inwardly focused and lose some of your ability to see and feel
with others. I can?t tell you how many times I?ve been
approached by newly emerging transpeople who can think and
talk of nothing but their own concerns. Not only does this make
for boring conversation, it makes for lousy politics. If we want
others to take an interest in our needs, we must take an interest
in theirs.

For starters, we would do well to help the gay and lesbian
community with their work on diversifying marriage, although
again, let me say this will not simply be a matter of
encouraging a few tranny marriages. After all, there have been
plenty of such marriages, but to most people, they?re not
particularly disturbing. People don?t care if a person who they
think of as a man wears a dress, or a woman wears a tux for
their wedding. Sure, it?s good for an occasional human interest
story, but it has not, as far as I know, drawn a legal challenge to
the legitimacy of the union? at least not in the last 50 years.
We can also be effective in helping those working on issues
of racism, as well as privilege, economic and physical.

Indigenous rights, women?s issues, elderly care, prisoner rights
and care, and many more issues are out there. Good people are
working hard on them, but are in need of help. Defense of our
freedoms, honest media reportage of world events, fighting the
abuses of globalization, and so many more issues are just begging
for our participation. In all of these, our
visibility as transpeople earns us respect and sometimes help
with our own issues. The more we?re out in the world, visible
and proud, working with and helping others, the more others
will be moved to respect and sometimes even befriend us. Best
of all, the more we get outside of ourselves and take an honest
interest in others, the more balanced we become as individuals,
and the more health and respect we feel for ourselves.

All of this having been said, there is a large maybe
looming. The Kantaras custody case pending in Florida, in
which an FTM transsexual is battling his ex- (or soon to be
ex-) wife?s claims that their marriage is invalid because of his
transsexualism, promises to deliver at least an educated ruling
on his legitimacy as a parent to their children. According to
Karen Doering, the lead attorney for Michael Kantaras, ?The
judge really was listening and learning, and we could actually
see, as the trial went on, that he was grasping the concepts as he
began to use the appropriate terminology.? This case may even,
if the judge is feeling particularly bold or missioned, deliver a
ruling on Michael?s legitimacy as a man for the purposes of
marriage. If it does so, it could become the first real victory of
its kind for transsexuals in this country. The only real victory
elsewhere comes from Australia in 2001 in the case of Kevin,
where a female-to-male transsexual was ruled a man for the
purposes of marriage (see>).
Would such a ruling constitute the kind of far-reaching
precedent that is needed in order to provide transsexuals with a
legal basis for sex change? We hope to have the opportunity to
find out. In the meantime, we would be foolish to put all our
stock in this one outcome. Rather, working towards
legitimating gay marriage and educating people about transgenderism
in general are two solid strategies towards lowering
the barrier to recognizing the legitimacy of sex change.
Is there such a thing as sex change? Of course there is. It?s
just going to take some time to open the eyes of our legal
system to that reality. Our destiny is clearly linked, for the time
being, to the issue of gay marriage, but it?s also linked to a
world of other issues of diversity, respect, integrity and dignity.
It?s time for us to show our faces, both as transgendered persons
in our own right, but also in support of all those who seek to
make the world a better place for all of us. The democratic
country towards which we are witnessing so much patriotism
lately is democratic not just because of our elected
representatives, but because of the participation of each and
every one of us. To the extent that we participate in our
governance, we live democratically. To the extent that we leave
it to others, we live under their rule.

Our systems change when we develop the will to change
them and the courage to act on that will. We have the will.
Courage is simply a matter of admitting that there is no other